DATE OF FILING : 25.02.2014.
DATE OF S/R : 05.05.2014.
DATE OF FINAL ORDER : 29.07.2015.
Ayodhya Prasad Shaw,
son of late Accharya Lal Prasad
of 12/1, Bibi Bagan Lane, Salkia,
District Howrah,
PIN 700006. ………………………………………………………… COMPLAINANT.
1. Sri Asit Baran Dey,
son of late Subal Chandra Dey,
of 74/1, Sri Aurobinda Road
( previously known as 74/1, Dinanath Sanyal Lane ), Salkia,
P.S. Golabari, District Howrah,
PIN 711106.
2. Smt. Amita Das,
w/o. Sri Tapan Das,
of 4-C, Iswar Mill Lane, P.S. Burtolla,
Kolkata 700006.
3. Smt. Minati Dey,
w/o. Sri Nishit Dey,
residing at J/F/5/2, Aswini Nagar,
Shyamali Apartment Baguihati, P.S. Rajarhat,
Kolkata 700059. ……………………………………………OPPOSITE PARTIES.
P R E S E N T
Hon’ble President : Shri B. D. Nanda, M.A. ( double ), L.L.M., WBHJS.
Hon’ble Member : Smt. Jhumki Saha.
Hon’ble Member : Shri A.K. Pathak.
F I N A L O R D E R
- This is an application U/S 12 of the C.P. Act filed by the petitioner, Ayodhya Prasad Shaw, praying for a direction on the o.ps. to execute and register the schedule mentioned property for residential flat measuring 450 sq. ft. at 74/1, Sri Aurobinda Road, P.S. Golabari, Howrah, after receiving the rest consideration money and handover N.O.C. and possession certificate and also compensation for a sum of Rs. 1 lakh for physical and mental harassment.
- The case of the petitioner is that he entered into an agreement with the o.p. 9, Satish Kumar Singh, promoter / developer, for purchasing the schedule mentioned flat measuring 450 sq. ft. at 74/1, Sri Aurobinda Road, P.S. Golabari, Howrah, and the said o.p. no. 9 is the constituted attorney of the o.p. nos. 1 to 8 being the owners. As per agreement, the petitioner paid Rs. 1 lakh by cheque drawn from Dena Bank. The rate was fixed Rs. 1,300/- per sq. ft. and the petitioner again paid Rs. 2 lakhs on 14.8.2010 by cheque also and thus total Rs. 3 lakhs paid. The petitioner is ready and willing to pay the rest amount but the o.p. avoided registration of the flat which is clear deficiency in service compelling the petitioner to file this case. Even though it is categorically mentioned in the agreement that the flat would be delivered within 15 months from the date of execution of agreement i.e., on 13.10.2010.
- The o.p. nos. 1 to 8 contested the case by filing a separate written version denying any allegations made against them and submitted that the case is not maintainable and also barred by limitation and further submitted that they are owners of 3 cottah bastu land at 74/1, Sri Aurobinda Road, P.S. Golabari, Howrah, and executed development agreement with the o.p. 9 on 22.01.2010 and executed general power of attorney in favour of o.p. no. 9 to perform all necessary acts. The developer had development agreement with other two land owners and plot nos. 72/5 and 72/6, Sri Aurobinda Road, P.S. Golabari, Howrah, were amalgamated with 74/1, Sri Aurobinda Road, P.S. Golabari, Howrah, and only known as 74/1, Sri Aurobinda Road, P.S. Golabari, Howrah, and the total land now measuring 6 cottah 3 inches 35 sq. ft. The H.M.C. consented to such amalgamation and the separate entity of the property of the o.p. nos. 1 to 8 has been extinguished and these o.ps. filed T.S. no. 165 of 2013 against o.p. no. 9 in the Court of Civil Judge, Howrah, to pass interim order of injunction. The petitioner is unknown to o.p. nos. 1 to 8 and they never consented for any agreement with the petitioner and so the case against the o.p. nos. 1 to 8 be dismissed with costs.
- The o.p. no. 9 contested the case by filing a separate written version stating that the case is not maintainable and the case is barred by limitation. He denied all allegations made against him and submitted that he entered into an agreement with the petitioner as stated in the case but the petitioner did not comply the terms and conditions of the agreement and paid only Rs. 1 lakh and violated the terms of agreement by making payment being 30% of the total consideration on three installments and 10% on the 4th installment and he also denied that he avoided registration. Rather the petitioner avoided registration and dishonoured the terms and conditions of the agreement and the case be dismissed with costs against the complainant.
5. Upon pleadings of parties the following points arose for determination :
- Is the case maintainable in its present form ?
- Whether the petitioner has any cause of action to file the case ?
- Whether there is any deficiency in service on the part of the O.Ps.?
- Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
- All the issues are taken up together for the sake of convenience and brevity for discussion and to skip of reiteration. On scrutiny of the case record this Forum finds that when the petitioner alleged non execution and non registration by the o.p. 9 in his favour then the o.p. no. 9 being the constituted attorney of owners/ o.p. nos. 1 to 8 submitted that the petitioner avoided making payment and he was willing to register the deed. The documents filed by the petitioner is agreement for sale which in page 21 showing receipt of Rs. 1 lakh from the petitioner. Thus both the parties are willing to get the deed registered by one in favour of another then there is no bar in allowing the complaint case wherein the o.ps. be directed to execute and register the sale deed in favour of the petitioner. It is noticed from the agreement for sale that Rs. 1 lakh was paid which is admitted by o.p. 9. It is the admitted case of the o.p. nos. 1 to 8 that they executed a development agreement as well general power of attorney in favour of the o.p. no. 9 to perform all necessary acts as per the said agreement and thus at the time of executing the sale deed in favour of petitioner, the owners of the property namely o.p. nos. 1 to 8 are also to sign in the sale deed as owners. Thus the petitioner is to deposit the rest consideration amount excluding what has been paid by him to o.p. 9 and the o.ps. are to execute and register the sale deed. This Forum also finds no concrete evidence that both the petitioner as well as o.ps. were ready and willing for the subsequent act leading to registration of sale deed and thus the prayer for maintenance as well as litigation costs by the petitioner were not duly substantiated and no deficiency on the part of the o.ps. established.
- In view of above discussion, this Forum finds that the petitioner is entitled to get the sale deed executed in his favour by the o.p. nos. 1 to 8 as owners and o.p. no. 9 as promoter / developer.
In the result, the claim case succeeds.
Court fee paid is correct.
Hence,
O R D E R E D
That the C. C. Case No. 101 of 2014 ( HDF 101 of 2014 ) be and the same is allowed on contest against the O.Ps. but without costs.
The O.Ps. are directed to execute and register the sale agreement in favour of the complainant / petitioner within 30 days from the date of this order after receiving the rest consideration amount as agreed upon between the petitioner and o.p. no. 9 in the sale agreement.
That the o.ps. fail to comply the order of the Forum, the petitioner would be at liberty to put the order in execution.
In view of findings above no compensation is awarded in favour of the petitioner for harassment as well as physical and mental agony and also no order as to litigation costs.
Supply the copies of the order to the parties, as per rule.
DICTATED & CORRECTED
BY ME.
( B. D. Nanda )
President, C.D.R.F., Howrah.
